received. In a letter dated June 29, 2007, the
Commission advised Ms. Hartjes that it had decided, pursuant to s. 41(1)(c) of
the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), that
it would not deal with Ms. Hartjes’s complaint because “the allegations are not
based on a prohibited ground of discrimination”. Ms. Hartjes seeks judicial
review of this decision.
I. Issues
[3]
This
application raises the following issues:
a. What is the appropriate
standard of review of the decision of the Commission?
b. Did the Commission err
in finding that Ms. Hartjes’s complaint was not based on a prohibited ground of
discrimination?
II. Background
[4]
Ms.
Hartjes’s complaint was made in the form required by the Commission and was
confined to three pages. Ms. Hartjes set out that the basis of her complaint;
specifically, she disclosed that she was an incarcerated Aboriginal woman who
had received “inadequate medical care”. She outlined the history of a serious
medical condition and submitted that the “inadequate medical care provided by
GVI was a result of discrimination in the provision of services on the basis of
race, national or ethnic origin and colour because the complainant is an
Aboriginal woman”.
[5]
In a
letter dated April 12, 2007, sent to both Ms. Hartjes and to the Commissioner
of CSC, the Deputy Secretary General of the Commission (the Commission Officer)
wrote to Ms. Hartjes to advise her that there were two bases upon which a
negative recommendation would be made to the Commission. The first ground was
the question of jurisdiction. After stating, in part, that a complainant must
“demonstrate that a correlation exists between the discriminatory act and a
prohibited ground of discrimination”, the Commission Officer wrote as follows:
Section
41(1)(c) of the CHRA states that the Commission may refuse to deal with
a complaint where the complaint is beyond the jurisdiction of the Commission. A
complaint that is not based on a prohibited ground of discrimination in the Act,
or does not provide a clear link to a ground, is beyond the jurisdiction of the
Commission.
[6]
The
Commission Officer also expressed his concern that Ms. Hartjes had available to
her a grievance process, which had not been followed.
[7]
Both
Ms. Hartjes and CSC were invited to make further submissions of no more than 10
pages in length, including attachments. CSC made no submissions. On May 3,
2007, Ms. Hartjes made further submissions, consisting of seven pages of
submission and three pages of appendix.
IV. The Decision
[8]
The
documents referred to above, including the Commission Officer’s letter
outlining the complaint and his initial recommendation to reject the complaint,
were before the Commission when it made its decision. The Commission did not
reject the complaint on the basis that Ms. Hartjes ought to have pursued
her grievance. However, it is apparent that the Commission agreed with the
Commission Officer’s recommendation, even after the supplementary submissions,
that Ms. Hartjes had not shown any link between her complaint and a prohibited
ground. As a result, the Commission dismissed Ms. Hartjes’ complaint on the
basis that, pursuant to s. 41(1)(c) of the CRHA, “the allegations are not based
on a prohibited ground of discrimination”.
[9]
It
is accepted that in judicial review of Commission decisions the investigator’s
or, as in this case, the Commission Officer’s report forms part of the reasons
(see Syndicat des employés de production du Québec et de l'Acadie v. Canada
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at 902; Sketchley
v. Canada (Attorney General) 2005 FCA 404 at paras. 36-37).
V. Analysis
A. Nature of the Decision
[10]
Before
proceeding to a discussion of the appropriate standard of review and thereafter
to the merits, it is important to understand the nature of the Commission’s
decision.
[11]
The
Commission has a statutory mandate to receive and deal with complaints of
discrimination on the basis of, inter alia, race, national or ethnic
origin, colour, or disability. The role of the Commission is to deal with the
intake of complaints and to screen them for proper disposition (Cooper v. Canada
(Human Rights Commission), [1996] 3 S.C.R. 854 at para. 52). As noted by
the Supreme Court in Cooper, above at para. 53:
It
is not the job of the Commission to determine if the complaint is made out.
Rather its duty is to decide if, under the provisions of the Act, an inquiry is
warranted having regard to all the facts. The central component of the
Commission's role, then, is that of assessing the sufficiency of the evidence
before it.
[12]
As I
read s. 41(1)(c), “jurisdiction” could refer to two different categories of
matters. For example, a complaint by an inmate of a provincial institution
could likely be dismissed under s. 41(1)(c); this would be a question of “true
jurisdiction . . . where the tribunal must explicitly determine whether its
statutory grant of power gives it the authority to decide a particular matter”
(see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 59). In a broader context,
a complainant may complain of certain acts that are, on their own, not
allegations that fall within the mandate of the Commission but allege that
these acts took place because of race, ethnic origin, disability or another
prohibited ground. In such a case, unless the complainant can disclose
sufficient information or facts to show a link to a prohibited ground of
discrimination, the acts complained of are not within the statutory mandate of
the Commission. In this second example, the pre-screening exercise involves an
assessment of the sufficiency of the evidence.
[13]
In
the application before me, it is evident that the Commission was not
questioning whether it had the jurisdiction to inquire into complaints arising
in a federal institution or whether discrimination on the basis of being
Aboriginal or having a disability was a prohibited ground. However, it is also
obvious that the Commission has no mandate to consider whether, absent a link
to a prohibited ground, Ms. Hartjes received adequate medical care. Thus, the
Commission was required to assess whether there was sufficient evidence put
forward by the complainant to show any link between the complained-of acts and
the two prohibited grounds.
[14]
Finally,
I observe that s. 41(1)(c) of the CHRA provides the Commission with
considerable discretion. Specifically, s. 41(1)(c) provides that “the
Commission shall deal with any complaint filed with it unless in respect of
that complaint it appears to the Commission that . . . the complaint is beyond
the jurisdiction of the Commission” [emphasis added]. The use of the words
“it appears to the Commission” infers the exercise of discretion.
[15]
In
sum, the question that was before the Commission was: did the submissions put
forward by Ms. Hartjes disclose a link between the treatment that she received
in GVI and discrimination on the grounds of racism or disability? Responding to
this question required the Commission to assess the sufficiency of evidence and
to exercise its discretion in doing so.
B. Standard of Review
[16]
The
law of standard of review recently changed with the Supreme Court’s decision in
Dunsmuir, above. Dunsmuir teaches, at paragraphs 57 and 62, that
a court should first ascertain whether the jurisprudence has already determined
in a satisfactory manner the degree of defence to be accorded with regard to a
particular category of question.
[17]
In Comstock
v. Public Service Alliance of Canada, 2007 FC 335, aff’d 2008 FCA 197, Justice
Gibson was faced with a judicial review of a decision of the Commission, taken
under s. 41(1)(c) of the Act. As in the case before me, the Applicant’s
complaints to the Commission had been dismissed on the ground that “. . . the
complaints are beyond the jurisdiction of the Commission as no link to a
prohibited ground of discrimination was established”. In his decision, Justice
Gibson carried out a careful analysis of the standard of review. Although this
case was pre‑Dunsmuir, I note that Justice Gibson undertook a
pragmatic and functional analysis which is, in substance, no different than the
second step identified by the majority in Dunsmuir. Justice Gibson
concluded that that the decision was reviewable on a standard of
reasonableness. On the basis of this jurisprudence, I am satisfied that the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a decision of the Commission under s.
41(1)(c) of the Act; that standard of review is reasonableness. I pause to note
that Justice Gibson’s decision was affirmed by the Court of Appeal in Comstock
v. Public Service Alliance of Canada, 2008 FCA 197, with no comment on the
standard of review adopted by Justice Gibson.
[18]
The
Applicant raises two cases that, in her view, establish a standard of review of
correctness - Gee v. Canada (Minister of National Revenue - M.N.R.), [2001] F.C.J. No. 48
at para. 33 (T.D.) (QL), rev’d 2002 FCA 4; Donovan v. Canada, 2008 FC
524 at paras. 10-11. Neither of these cases dealt with the same category of
question as is before me. These cases do not assist in determining the
appropriate standard of review.
[19]
In
addition, a review of the four factors relevant to the standard of review
analysis leads to the same conclusion. First, I observe that there is no
privative clause in the CHRA; nor is there any statutory right of appeal. Second,
a decision whether the allegations of a claimant are linked to or based on a
prohibited ground of discrimination has a significant factual component to it,
and involves the exercise of discretion. Third, while the purpose of the
legislation is to give effect to the fundamental Canadian value of equality,
the CHRA grants the Commission a remarkable degree of latitude when it is performing
its screening functions. Finally, the Commission has considerable expertise in
human rights matters and in balancing the competing interests of the parties to
a complaint.
[20]
Taking
the relevant factors into account, I am satisfied that the Commission's
determination as to whether allegations of a complainant are linked to or based
on a prohibited ground of discrimination is reviewable under the reasonableness
standard.
[21]
In
reviewing the decision against the reasonableness standard, the Court will consider
whether the decision under review falls within a range of possible acceptable
outcomes which are defensible in light of the facts and law (see Dunsmuir
at para. 47).
C. Analysis of the merits
[22]
Having
determined that the decision of the Commission is reviewable on a standard of
reasonableness, I next turn to the specifics of Ms. Hartjes’ complaint.
[23]
Although
the threshold may be low, there is a burden on a complainant to put sufficient
information or evidence forward to persuade the Commission that there is a link
between complained-of acts and a prohibited ground.
[24]
Ms.
Hartjes identifies herself, in her complaint, as an Aboriginal person. She
alleges that she received “grossly inadequate medical care and experienced
discrimination in the provision of medical services on the basis of race,
colour, national or ethnic origin, and disability”. The complaint set out a
description of two incidents as the “basis of the complaint”. Ms. Hartjes then
describes the history of her medical treatment and her interactions with
various medical and non-medical personnel. Having read the submission carefully
and assuming that her medical care was inadequate (which, of course, I am not
deciding), I can see nothing that would lead me to link her alleged
mistreatment to her alleged discrimination. Nowhere in her complaint does Ms.
Hartjes provide any evidence to suggest that non-Aboriginal persons receive
better or different medical care.
[25]
As
noted above, Ms. Hartjes was advised of the shortcomings of her complaint in the
letter from the Commission Officer dated April 12, 2007.
[26]
Almost
the entirety of Ms. Hartjes’s further ten-page submission in reply dealt with
the inadequacy of the grievance procedure. The following summarizes all of her
submissions on the link between the complained-of acts and the prohibited
grounds:
·
In
paragraph 2, Ms. Hartjes states that her grievances are “directly linked to the
prohibited grounds of race, colour, national or ethnic origin and disability .
. . and as such are within the jurisdiction of the Commission”;
·
In
paragraphs 15-17, Ms. Hartjes draws the attention of the Commission to findings
and opinions of the Supreme Court of Canada, two Royal Commissions and a
Canadian Bar Association Report on, inter alia, the overrepresentation
of Aboriginal women in the penal system and, more generally, the racism faced
by Aboriginal persons and systemic discrimination in the criminal justice
system.
·
In
paragraph 18, Ms. Hartjes submits that:
the
lack of proper response to her serious medical conditions are premised on
systemic discrimination within the institution against her on the grounds of
both race and disability as Ms. Hartjes is an Aboriginal woman with physical
and mental disabilities. And, as such, her credibility and worthiness of equal
access to medical services afforded non-Aboriginal persons were denied.
[27]
Absent
a link, the allegations of Ms Hartjes are based solely on a claim that she
received “grossly inadequate” medical care. Such a claim is not one that is
based on a prohibited ground and is thus beyond the statutory authority of the
Commission.
[28]
Ms.
Hartjes argues, in essence, that the link can readily be inferred from the
facts that: (a) she allegedly encountered difficulties in accessing proper
medical care; (b) she is Aboriginal; and (c) past Royal Commissions and
jurisprudence have concluded that Aboriginal persons are discriminated against
in penal institutions.
[29]
Even
if I assume that it would have been reasonable for the Commission to accept the
submissions and draw the inferences now argued, this would not mean that it was
unreasonable for the Commission to decide otherwise. A characteristic of the
reasonableness standard of review is that there may be a range of possible
acceptable outcomes which are defensible in light of the facts and law. The
fact that another possible outcome may be preferred by the Court or an
applicant does not necessarily make a tribunal’s decision unreasonable.
[30]
In
the case before the Commission, Ms. Hartjes provided no submissions that
identified how her treatment was linked to the alleged discrimination. Her
initial and response submissions could reasonably be characterized as bald
assertions of discrimination. The question to be assessed by the Commission was
not whether discrimination against Aboriginal women or persons with medical
disabilities in prisons exists. Rather the Commission was deciding, at this
pre-screening stage, whether it appeared to the Commission that Ms. Hartjes had
put forward sufficient information to show – even at a prima facie level
– a link between her individual treatment problems and a prohibited ground. The
Commission decided that she had not done so.
[31]
Given
the record that was before the Commission, I am satisfied that the Commission’s
decision is defensible in light of the facts and law before it. There is no
reviewable error.
VI. Conclusion
[32]
For
these reasons, this application for judicial review is dismissed. The
Respondent did not seek costs; no costs will be awarded.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed, without costs.
“Judith
A. Snider”
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